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March 14, 2011

Complying with all statutory tests critical to sustaining an administrative decision

Complying with all statutory tests critical to sustaining an administrative decision
Gallo v Office of Mental Retardation and Developmental Disabilities, 37 AD3d 984

Albert P. Gallo’s application for employment as a bus driver with the Schenectady County Chapter NYSARC, Inc. (ARC) was rejected by OMRDD after it found that Gallo had been convicted of assault in the second degree in 1988.

OMRDD said that his employment as an ARC driver involved an unreasonable risk to the safety or welfare of consumers served by ARC in view of this conviction. Gallo sued, asking the court to overturn OMRDD’s determination.

Supreme Court found the record “insufficiently developed” and annulled OMRDD’s determination. The court also directed OMRDD to approve ARC's employment of Gallo but denied Gallo counsel fees. The parties cross-appealed, OMRDD from that part of the judgment annulling its determination and directing it to approve Gallo’s employment by ARC and Gallo from the denial of counsel fees.

The Appellate Division said that OMRDD is required by statute to undertake criminal history background checks of employees of voluntary corporations such as Schenectady ARC. It noted that when Gallo’s background check revealed the 1988 assault in the second-degree conviction, OMRDD notified Gallo of its finding. It also advised him “to submit any answering documentation.”

After receiving Gallo’s letter of explanation and letters of reference, OMRDD rejected Gallo’s application, indicating that its decision was “on the grounds that [Gallo was] convicted of a crime or crimes” and that this determination was consistent with the provisions of Correction Law Article 23-A.

The court noted that Correction Law Section 753, which is part of Article 23-A, sets out eight elements that a public agency is to consider in making a determination pursuant to Correction Law Section 752 concerning licensure or employment of any individual with a criminal conviction. In the words of the Appellate Division:

When all eight factors are considered and the positive factors are balanced against the negative factors, the resulting decision is neither arbitrary nor capricious nor does it constitute an abuse of discretion and reviewing courts may not reweigh the factors and substitute their judgment for that of the agency.

In this instance, however, the Appellate Division found that a number of the statutory elements required to be considered were not set out in the “checklist” that OMRDD claimed mirrored the statutory factors and was used in making OMRDD’s determination regarding Gallo’s eligibility for employment by ARC.

Because these factors were apparently not considered, the Appellate Division ruled that OMRDD’s determination was arbitrary. It remitted the matter back to OMRDD for its consideration of “the public policy issue and for a determination of whether a certificate of relief from disabilities or good conduct or the equivalent evidence would benefit this applicant.”

Addressing the issue of the attorney fees claimed by Gallo, the court said it that denial of counsel fees was not premature and OMRDD’s position herein “may ultimately prove to be correct” and, in any event, “it was substantially justified.”

The decision is posted on the Internet at:
http://nypublicpersonnellawarchives.blogspot.com/2007/02/complying-with-all-statutory-tests.html
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